Michael Lorne v The Gleaner Company, Wyvolyn Gager & Glen Cruickshank
| Jurisdiction | Jamaica |
| Judge | Sykes J (Ag) |
| Judgment Date | 07 June 2002 |
| Judgment citation (vLex) | [2002] 6 JJC 0701 |
| Date | 07 June 2002 |
| Court | Supreme Court (Jamaica) |
| Docket Number | SUIT NO.C.L. L 047 OF 1999 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN COMMON LAW
CIVIL PROCEDURE - Delay - Summons to dismiss for want of prosecution - Whether defendant has been seriously prejudiced by delay
A new day dawned on the common law world on January 11, 1968. The Court of Appeal of England delivered the much anticipated judgment in Allen v Sir Alfred McAlpine [1968] 2 Q.B. 239. It established this principle: tardy plaintiffs may find themselves out of court in appropriate circumstances. The House of Lords affirmed the decision in Birkett v James [1978] A.C.296. Lord Diplock formulated the principle in this way 318F–G:
The power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, e.g. disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party.
The Judicial Committee of the Privy Council in the case of Warshaw v Drev (1990) 38 W.I.R. 221 approved the cases of Allen (supra) and Birkett (supra) as being applicable to Jamaica. Lord Brandon of Oakbrook summarise the principles at page 228a–c:
Leaving aside cases of contumelious behavior on the part of a plaintiff or his lawyers, of which the present case is clearly not one, the authorities referred to show that dismissal of an action for want for want of prosecution will only be justified if the following matters are established: first, that there has been inordinate and inexcusable delay in the prosecution of the action on the part of the plaintiff or his lawyers; and secondly, that such delay has given rise to a substantial risk that a fair trial of the action would no longer be possible, or has caused serious prejudice to the defendant in one way or another....
Some how the lesson has been lost on some litigants.
Many delinquent plaintiffs have sought solace in Lord Diplock's oft quoted dictum. They say their action cannot be struck out unless the defendant shows that they (the defendant) have been prejudiced. Until 1997 in the United Kingdom they were able to say that mere delay was insufficient to strike out their writ on the basis of that delay was an abuse of process. They even had the boldness to say that a fair trial was still possible regardless of how long they delayed. Never mind that the defendant is constantly exposed to a seemingly never ending law suit. Never mind that the defendant has to commit his resources to having lawyers and solicitors at the ready, waiting to fend off an action that has been in gestation for a long time. Never mind that the quantum of damages may be adjusted to take account of inflation and/or devaluation to say nothing of the interest payable. All this the defendant must endure unless he can point to some specific prejudice such as dead or missing witnesses, missing records or faulty memories of witnesses.
Even after the Jamaican Court of Appeal said that in some instances delay per se may give rise to the possibility that a fair trial is impossible, the delinquent plaintiffs did not quicken their steps (see West Indies Sugar v Minnel (1993) 30 J.L.R. 542 ). Surely this state of affairs must be intolerable.
The cases of McAlpine (supra) and Birkett v James (supra) reflected growing judicial disquiet at the arthritic pace of litigation. The snail-like pace of litigation produces deliterious effects: it clogs court lists, it increases costs, it impedes other litigants from pursuing their cases with due speed, it delays the delivery of justice and it prolongs litigation unnecessarily. It was hoped that the twin horns of Lord Diplock's dictum would have quickened the steps of plaintiffs and their legal advisers. Alas, this has not been the case.
The question of undue delay has occupied the attention of judges, lawyers and members of the public. The public feel that the legal system is productive of much delay and this delay contributes to injustice. Ironically, the courts of justice are accused of injustice.
The concern that the United Kingdom has shown about this thoroughly undesirable state of affairs is also reflected in this jurisdiction. The Court of Appeal of Jamaica in Patrick Valentine v Nicole Lumsden (1993) 30 J.L.R. 525; West Indies Sugar v Stanley Minnel (1993) 30 J.L.R. 542; Woods v H.G. Liquors Ltd (1995)48 W .I.R. 240; The Administrator General of Jamaica v Dudley Blake SCCA 3 6 of 1995 (delivered October 21, 1997) and Porter Services Ltd. v Mobay Undersea Tours and another SCCA 18/2001 (delivered March 11, 2002) expressed its concern about the delay in prosecuting claims. Six decisions in nine years by the Court of Appeal have simply been ignored.
In Jamaica the situation has reached crisis proportions. Panton J.A. in Porter's case (supra) said at page 9:
In this country, the behavior of litigants, and in many cases, their attorneys, in disregarding rules of procedure, has reached what may comfortably be described as epidemic proportions. The widespread nature of this behavior is not seen or experienced these days, I daresay, in those jurisdictions from which precedents are cited with the expection that they should be followed without question or demur here.
For there to be respect for the law, and for there to be the prospect of smooth and speedy dispensation of justice in our country, this Court has to set its face firmly against inordinate and inexcusable delays in complying with rules of procedure. (My emphasis)
I would only say: so should this court.
This was not the first time that the Court of Appeal of Jamaica has used such robust language. In Woods v H.G. Liquors (supra) Wolfe J.A. (as he then was) said at page 256 g–h
I make bold to say, plagued as our courts are with inordinate delays, this court must develop a jurisprudence which addresses our peculiar situation.
And he warned at page 256 a–b that:
Inordinate delay, by itself, may make a fair trial impossible. Prejudice, in my view, includes not only actual prejudice but potential prejudice......
As time went on it was thought, at least, in the United Kingdom that the Birkett v James principle was not working as well as was hoped.
From the number of appeals that reached the Court of Appeal of England one gets the impression that lawyers acting for defendants were dissatisfied with the operation of the Birkett v James rule. Something more was needed. As we shall see that "something more" came in three cases: Department of Transport v Chris Smaller [1989] A.C. 1197; Grovit v Doctor [1997] 1 W.L.R. 640 and Arbuthnot Latham Bank v Trafalgar Holdings Ltd [1998] 1 W.L.R. 1426.
During the 1980's a number of decisions of the Court of Appeal of England catalogued by Lord Griffiths in Department of Transport v Chris Smaller [1989] A.C. 1197 reflected concerns that Lord Diplock's propositions were inadequate. The House of Lords was asked to review Birkett v James (supra). They declined the invitation. Despite not acceding to the invitation there can be no doubt that the House of Lords felt the some of the critisms were justified. Lord Griffiths, who spoke for the House, felt constrained to uphold the correctness of Birkett v James (supra) on the basis that no good reason had been shown to depart from it. He however added at page 1208:
Further more is should not be forgotten that long delay before the writ will have the effect of any post writ delay being looked at more critically by the court and more readily being regarded as inordinate and inexcusable than would be the case if the action had been commenced soon after the accrual of the casue of action.
This incidentally was the solution proposed by Lord Denning M.R. a decade earlier in Biss v Lambeth Health Authority [1978] 2 All ER 125, 132 f which was rejected by Mustill L.J. (as he then was) in Electricity Supply Nominees Ltd. v Longstaff and Shaw (referred to by Lord Griffiths at page 1205).
In Grovit v Doctor [1997] 1 W.L.R. 640 the House of Lords returned to the question of dismissing an action for want of prosecution. Once again Lord Diplock's formulation was under attack on the grounds that it was too narrow and caused much difficulty to defendants who could not prove or establish some specific prejudice that would make the trial unfair. Yet again the House of Lords felt that this case was not appropriate for a review of Lord Diplock's propositions. Lord Woolf was mindful of the fact that the respondents to the appeal were not represented and so the submissions of the appellant were not...
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